PannageMan

Introduction

Judgment was handed down yesterday, 13 January 2022, in Darwall v Dartmoor National Park Authority (DNPA), an action brought against the DNPA to establish whether there is a right of overnight camping on the Dartmoor commons. The answer, according to the Chancellor of the High Court, Sir Julian Flaux C., is that there is not.

Under section 10(1) of the Dartmoor Commons Act 1985, ‘the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation’. In an action brought by Alexander and Diana Darwall, the Chancery division of the High Court had to decide whether the right conferred by the 1985 Act extended to temporary overnight camping on the moors.

The Darwalls are the owners of Blachford Manor, an estate on the south side of Dartmoor near Cornwood. Part of the estate includes Stall Moor, an area of common land to the north of Cornwood. According to the judgment, ‘Part of the estate’s farm includes Stall Moor…where the Claimants keep their cattle, lambs and fallow deer.’ That seems unlikely, given that the moor is subject to rights of common grazing exercisable by other Dartmoor farmers, and the Darwalls will have few if any rights to graze their own moor — still less are they likely to keep their fallow deer there, for they would never see them again.

The purpose of this blog is not to review the judgment in detail, but to look at the history of statutory access to open country, and consider whether the court has missed the point (spoiler: yes).

The judgment

But first a brief look at the judgment. It is founded in the judge’s interpretation of the access provision in the 1985 Act. The judge found that wild camping was no part of ‘open-air recreation’. He concluded, ‘that camping is not open-air recreation, but a facility for its enjoyment.’ The judge agrees that rock-climbing could be said to be categorised as open-air recreation. But for the wild camper: ‘The open-air recreation in which they are engaging is the hiking not the wild camping.’

The judge also rejected the DNPA’s contention that wild camping was an implied right ancillary to the right of access. ‘Any walker who wants to wild camp can always seek the permission of the landowner or, if in a remote place, take their chances on pitching a tent without the landowner knowing, whilst being prepared to move on if asked to do so.’ He did not contemplate how the walker would be able to identify or contact the landowner (though this might be less troublesome on the Duchy of Cornwall commons: perhaps the Duchy should establish a 24-hotline at its office in Princetown?).

The judge rejects the DNPA’s suggestion that there was a settled meaning to the 1985 Act access provision (so as to include wild camping), or that pre-1985, there had been a customary right to camp.

And so the judge finds for the claimant. There is a strong sense that the judge thought of Stall Moor as an adjunct to a family farm, unfortunately encumbered by a statutory right of access which had to be read down to minimise its effect on the farm — rather than a remote area of moorland chiefly valued for its grazing taken by third-party commoners.

Access to commons in the C19

The 1985 Act is not a pioneer in confirming a right of access to common land, although it did pioneer a right in relation to the Dartmoor commons. Under Part I of the Commons Act 1876, 36 orders were made for the regulation of a variety of lowland and upland commons in England and Wales, each of which (with one or two exceptions) confirmed a right of access on foot and sometimes on horseback. The process of obtaining orders, which required confirmation by an Act of Parliament, was cumbersome, and Part I of the Commons Act 1899 provided a more streamlined mechanism for district councils to obtain powers of regulation and management of common land by means of a scheme subject to a veto by the owner or a substantial part of those entitled to the rights of common. The advantage to the owner in submitting to a scheme was that the district council assumed responsibility for managing the common, and it could be expected to put in place and enforce byelaws for that purpose. But the corollary was that each scheme would confer a right of access to the common. In the words of the first model scheme published in 1899 (to be adopted for the purposes of each scheme as made), the local inhabitants were granted ‘a right of free access to every part of the common and a privilege of enjoying games and other species of recreation thereon’, subject to any byelaws. Perhaps surprisingly, the earliest model scheme did not confer an express power to make byelaws prohibiting camping — although it did confer a power to exclude ‘gipsies’ (regardless of whether any other byelaw had been contravened). A driving force for making schemes at this time was to combat the use of commons by the travelling community. Perhaps, even in 1899, it was thought that such a power went too far, and by 1900, we see instead a revised model scheme which confers a power to make a byelaw prohibiting the erection of tents. Many hundreds of schemes subsequently were made, although few were applied to the sort of upland commons which are a feature of the Dartmoor National Park, and only one was made for a Devon common (at Galmpton Common, Churston Ferrers) .

S.193 of the Law of the Property Act 1925

A quarter of a century later, s.193 of the Law of Property Act 1925 conferred (by subs.(1)) ‘rights of access for air and exercise’ to so-called ‘urban’ commons and others to which the section was applied by the owner executing a deed under subs.(2). Again, this section was intended to be an attractive proposition for rural common owners — apply the section by deed, admit a public right of access to the land, but avail oneself of the option to apply to the Minister, under para.(b) of the proviso to subs.(1), for an order of limitation, similar to byelaws, to introduce criminal sanctions for relatively minor transgressions. However, para.(c) of the proviso provides that: ‘such rights of access shall not include any right…to camp or light any fire thereon’, and subs.(4) creates a criminal offence of doing either of these things. Several of the Dartmoor commons had s.193 applied by virtue of deeds (such as Haytor Down, subsequently revoked in part, and the Widecombe commons).

In R v Secretary Of State For Environment ex parte Billson, Sullivan J (as he then was) found that horse riding on s.193 commons was ‘a normal way of taking air and exercise in 1925’ (it might have been safer to say ‘normal for a certain part of society’), and was a legitimate part of the right of access under that section. Sullivan J added:

‘89. Not merely do paragraphs (a) to (d) not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all. In 1925 many, if not most carriages, carts and so forth, would still have been horse drawn. 

90. If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.’

One can apply the same rationale to camping. Para.(c) excludes camping from the right, which would not have been necessary unless it were thought to be ‘a normal way of taking air and exercise’ — but one which the framers of the provision decided should be expressly placed outside its scope. Moreover (and Sullivan J does not address this point), para.(c) and subs.(4) are complementary: para.(c) shifts certain activities outwith the right (which otherwise might fall within it) and subs.(4) then criminalises those activities. If any of the activities in para.(c) were not believed otherwise to lie within the scope of the right, then it would be wholly redundant, because subs.(4) alone would be sufficient to impose criminal sanctions on activities which were no part of the right of access for air and exercise.

It is commonplace to find in orders of limitation made in this era provisions which, for example, prohibit activities to ‘break in horses by grooms or others’ or to ‘erect any tent’ — though the latter limitation plainly is superfluous because of subs.(4). (And it is worth noting the very modest interference in the right to ride on horseback effected by the former limitation.)

S.193 of the 1925 Act conferred access to around one-fifth of common land in England and Wales (taking into account those commons to which it was voluntarily applied by deed particularly in the years between the Act and the Second World War). But most rural commons, and nearly all of upland England and Wales which was not common land, continued to lack access rights, and access to some of it remained actively discouraged.

Part V of the National Parks and Access to the Countryside Act 1949

Part V of the National Parks and Access to the Countryside Act 1949 was a well-meaning but weak legislative vehicle to address that deficit. It enabled local authorities to enter into access agreements with owners of ‘open country’ (mountain, moor, heath, down, and registered common land, land which now is subject to the right of access under Part I of the Countryside and Rights of Way Act 2000, but also woodland and riverside) so that such land would become legally accessible. In default of agreement, authorities could make access orders, subject to confirmation by the Minister. In the event, relatively few agreements were made, and the majority in terms of extent related to the Peak District. Only two access orders ever were confirmed (for Wolf Fell in Lancashire and Seaton beach in Cornwall).

The vehicle for conferring access to land subject to agreements and orders was contained in s.60 of the 1949 Act. It was decidedly low key. Subs.(1) provided that:

‘Subject to the following provisions of this Part of this Act, where an access agreement or order is in force as respects any land a person who enters upon land comprised in the agreement or order for the purpose of open-air recreation without breaking or damaging any wall, fence, hedge or gate, or who is on such land for that purpose after having so entered thereon, shall not be treated as a trespasser on that land or incur any other liability by reason only of so entering or being on the land[.]’

It will be seen that no express right of access was conferred, but instead, an immunity from trespass for those engaged in ‘open-air recreation’. (Indeed, the provision was sufficiently modest that the framers of Part I of the 2000 Act plumped for an expressly-worded right of access, this being politically somewhat more combative.) This was subject (subs.(4)) to the Second Schedule to the 1949 Act, which contained a list of ‘General Restrictions to be observed by Persons having access to open country or waterways by virtue of part V’ of the 1949 Act. This Second Schedule replicates among other things the restrictions in para.(c) of the proviso to s.193(1) of the 1925 Act — no vehicles or fires — as well as many of the activities which typically were addressed in orders of limitation imposed under para.(b) of that proviso — shooting, swimming (but only where a prohibitory notice is displayed), destroying plants, disorderly conduct and so on. Nowhere in the Second Schedule will one find camping, or any allusion to it. Plainly, the framers of the 1949 Act saw that it was a proper part of ‘open-air recreation’, and to be encouraged.

One can argue to the contrary — that camping was perceived to be no part of recreation, and so unnecessary even to be included in the Second Schedule. But in the context of its high-impact bedfellows, such as ‘hunting, shooting, fishing, snaring’ (para.1(f) of the Second Schedule), it would be very odd if rather innocuous camping was seen as obviously outwith the right, too absurd even to be listed, or even just overlooked. The position is just the same with horse riding: it is not mentioned in the Second Schedule, and so one can infer that it is part of ‘open-air recreation’.

The reality was to be found in any particular agreement. S.60(3) of the 1949 Act provided that:

‘An access agreement or order may specify or provide for imposing restrictions subject to which persons may enter or be upon land by virtue of subsection (1) of this section…and that subsection shall not apply to any person entering or being on the land in contravention of any such restriction or failing to comply therewith while he is on the land.’

And it is commonplace for such agreements to contain additional restrictions, not included in the Second Schedule to the 1949 Act, which are imposed on the agreement land. These typically include an exclusion of horse riding and of camping, and a requirement for keeping of dogs on leads.

It is also relevant to note that, where an agreement or order is in force, it is not to apply to ‘excepted land’, which includes agricultural land other than rough grazing, and golf courses.

Commentary

The common thread to this half-century of access provisions is that they are strongly suggestive that the framers of each enactment considered that the right conferred was seen as very broad in effect, and needed to be constrained. An 1899 Act scheme might provide for ‘a right of free access to every part of the common and a privilege of enjoying games and other species of recreation thereon’; the 1925 Act conferred ‘rights of access for air and exercise’, the 1949 Act conferred immunity for entry to land ‘for the purpose of open-air recreation’. All three enactments therefore sought to row back from that breadth, either with specific exclusions (para.(b) of the proviso to s.193(1) of the 1925 Act, and the Second Schedule to the 1949 Act), or with powers to impose restrictions (byelaws made under a scheme, orders of limitation, additional terms in access agreements).

The legislative history suggests that this breadth encompassed horse riding, lighting fires, recreational driving of vehicles and swimming. Why would it not have included overnight camping — given that camping was expressly excluded from the ambit of s.193 of the 1925 Act, and within the scope of byelaws imposed under an 1899 Act scheme and restrictions under a 1949 Act agreement?

It must be said that the judge finds that, ‘The 1949 Act clearly did not confer a right to wild camp without permission on land the subject of an access agreement’. I beg to differ.

But even if this analysis is sound, it does not necessarily mean that the 1985 Act confers a right to camp. It must depend on the terms of the particular enactment.

Subs.(1) of s.10 of the 1985 Act provides that:

‘Subject to the provisions of this Act and compliance with all rules, regulations or byelaws relating to the commons and for the time being in force, the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation; and a person who enters on the commons for that purpose without breaking or damaging any wall, fence, hedge gate or other thing, or who is on the commons for that purpose having so entered, shall not be treated as a trespasser on the commons or incur any other liability by reason only of so entering or being on the commons.’

It immediately will be seen that this provision is derived from s.60(1) of the 1949 Act. Access is for the purposes of ‘open-air recreation’ — but it has been beefed up, so that not only is there an immunity from trespass, but a specific ‘right of access’ is conferred to the commons, and ‘on foot and on horseback’ too. The relationship with the 1949 Act is further reinforced, by subs.(3), so as to impose on the right under subs.(1) the restrictions in the Second Schedule to the 1949 Act, and the provisions for excepted land in s.60(5)(b)–(g) of the 1949 Act (but without the exclusion of improved agricultural land). In short, the right conferred by the 1985 Act is in almost exactly the same terms as that conferred by the 1949 Act. (As an aside, that means that there is no right of access to those parts of the Dartmoor commons occupied by golf courses, such as Tavistock golf club.)

Leaving aside the express conferral of a right in the 1985 Act, one might dwell on the specification of a right of access on horseback. Why was that required to be included, if (as I suggest) it was impliedly within the scope of the 1949 Act anyway? The answer is that it was a political necessity. The Dartmoor Commons Bill had earlier been introduced in the 1979–80 session of Parliament, but had failed owing to its exclusion of horse riding. If the Bill was to succeed this time around, it had to apply to riding, and to be seen to do so. It required express words to that effect.

Thus the right of access under the 1985 Act is on all fours with that under the 1949 Act — and as we have seen, it is consistent with a series of enactments which conferred rights of access to open country in broad terms, subject only to restrictions expressed in specific language.

Part I of the Countryside and Rights of Way Act 2000

But that is not the end of the story. Part I of the Countryside and Rights of Way Act 2000 finally enacted a right of access to all open country and registered common land to which access was not already available under one of the predecessor enactments already mentioned (strictly speaking, the Part I right of access does not apply in any of those cases, nor to the Dartmoor commons: see s.15(1)). Part I adopted a very similar form to the 1949 Act — both the civil servants and Parliamentary counsel found the 1949 Act to be well-drafted and a good model (save, as noted above, the omission of any specific right of access). As with the 1949 Act, s.2(1) of the 2000 Act confers access ‘for the purposes [sic: plural] of open-air recreation’. Fittingly, the restrictions contained in the Second Schedule to the 1949 Act are replicated in similar terms in Sch.2 to the 2000 Act, and the excepted land provisions in s.60(5) of the 1949 Act are likewise largely reproduced in Sch.1. In both cases, there are understandable modifications. And in para.1(s) of Sch.2 to the 2000 Act, we find a restriction on a person who ‘engages in any organised games, or in camping, hang-gliding or para-gliding’. These are, with the exception of organised games (which were excluded from the ambit of open-air recreation by s.114(1) of the 1949 Act), restrictions new to the 2000 Act: they do not appear in the Second Schedule to the 1949 Act. The inception of hang and para-gliding is obvious — they were not widely practised in the 1940s. Organised games and camping are political concessions, intended to minimise the impact of the new right on landowners, who (unlike under the 1949 Act) were not entitled to compensation. Plainly, however, if camping were not a legitimate part of the right conferred by s.2(1), and of s.60(1) of the 1949 Act, it would not have needed to be dropped into the restrictions under the 2000 Act. I can recall a discussion among the civil servants drafting Part I (I was one of them), as to whether the omission of any exclusion of camping in the 1949 Act should be reversed in the 2000 Bill, and the conclusion, ratified by Ministers, was that it should.

Regrettably, there is no indication that these historical antecedents to the 1985 Act were brought before the court by the DNPA. One can only hope that the DNPA will appeal, and include a more thorough appraisal of the history of access legislation in its submissions to the court.

15 January 2023 Lightly edited, including to remove incorrect reference to camping on Wolf Fell, and to note the exclusion of organised games under the 1949 Act.

24 January 2023 Minor edits mainly to penultimate paragraph.

Postscript: This judgment was reversed on appeal, by the Court of Appeal. The Supreme Court has granted leave for appeal, and the case is likely to be heard later in 2024 or early 2025.